U.S.

Department of Labor Office of Administrative Law Judges

36 E. 7th St., Suite 2525
Cincinnati, Ohio 45202

(513) 684-3252
(513) 684-6108 (FAX)
Issue Date: 20 May 2005
Case No: 2005-AIR-3

In the Matter of

STEPHEN C. DAVIDSON

Complainant

v.

MIAMI AIR INTERNATIONAL, INC.

Respondent

BEFORE: RUDOLF L. JANSEN

Administrative Law Judge

DECISION AND ORDER

GRANTING RESPONDENT’S MOTION FOR SUMMARY DECISION

This case arises under Section 519 of the Wendell H. Ford

Aviation Investment and Reform Act for the 21st Century, 49
U.S.C. § 42121 ("AIR 21"). These provisions provide protection
from discrimination to employees in the airline industry who
engage in certain types of protected activity. The regulations
implementing Section 519 appear at 29 C.F.R. § 1979.100 et seq.

The proceedings before the Office of Administrative Law

Judges ("OALJ") were initiated on November 11, 2004, when
Stephen C. Davidson (hereinafter Complainant or Davidson),
requested a hearing before the OALJ on his AIR 21 Complaint.1
This matter is currently set for hearing in Miami, Florida,

1
Davidson included American Airlines, Inc. (hereinafter American), as a
Respondent in his Complaint. On April 22, 2005, Complainant filed a Motion
to Dismiss With Prejudice all Claims Against American. On May 16, 2005, I
granted Complainant’s Motion and dismissed all claims against American with
prejudice.
during the week of July 11, 2005. The Respondent has now filed
a Motion for Summary Decision asking that this matter be
dismissed.

Miami Air International, Inc.’s (hereinafter Miami) Motion

was styled “Miami Air International, Inc.’s Motion for Summary
Final Order” (hereinafter Miami’s Motion), and was mailed on
February 14, 2005 and received by this office on February 17,
2005. The Motion includes the Affidavit of Carlos L. De Zayas
who is the attorney who represented Miami in an earlier 2001 AIR
21 case which had been filed by Davidson against Miami. The
Motion also contains six attachments captioned Exhibits (“MX”)
one through six. The description of these Exhibits is as
follows: “MX 1” is a copy of the Complainant’s application for
workers’ compensation benefits against American dated December
19, 2002; “MX 2” is a copy of the Complainant’s application for
workers’ compensation benefits against American dated January
16, 2004; “MX 3” is a copy of the civil action the Complainant
filed against American in the U.S. District Court, Southern
District of Florida; “MX 4” is a copy of Complainant’s civil
action filed against American in the 11th Judicial Circuit in
Miami-Dade County, Florida; “MX 5” is a copy of a letter written
to Administrative Law Judge Michael P. Lesniak dated November
21, 2002; and “MX 6” is a copy of the provisions of 49 U.S.C. §
44703.

Complainant responded to Miami’s Motion on March 6, 2005

and submitted Exhibits (“CX”) A through K. These Exhibits are
as follows: “CX A” is a copy of Complainant’s employment
identification cards from both American and Miami; “CX B” is a
copy of a letter from a handwriting examiner and a document that
Complainant alleges contains a forged signature; “CX C”
contains various communications that Complainant alleges concern
fraudulent documents; “CX D” contains a copy of a letter written
to Judge Michael P. Lesniak on February 6, 2005; Judge Lesniak’s
response in the form of an Order dated February 16, 2005, and
the hearing transcript dated November 6, 2002 regarding
Complainant’s 2001 AIR 21 complaint against Miami; “CX E”
contains 35 documents presented to American by Miami; “CX F”
contains various written requests by Complainant to Miami to
obtain a copy of his personnel record; “CX G” contains a copy of
the Settlement Agreement between Complainant and Miami, a letter
to the EEOC Miami District Office requesting his complaint
against Miami be dismissed, and a letter from the EEOC granting
the request; “CX H” is a copy of Complainant’s video tape
deposition by American dated June 17, 2004; “CX I” is a copy of
an Arbitration Opinion and Award dated July 7, 2003; “CX J”

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contains copies of 46 documents whose significance or relevance
in this matter is questionable; and “CX K” contains a letter
from Dr. Robert Fiscella, M.D. dated December 6, 2000 indicating
Complainant is fit for duty; a letter from Complainant to Chief
Brian Fields dated September 6, 2004; and a copy of a Settlement
Agreement that is unsigned.

For the reasons stated below, the Respondent’s Motion for

Summary Decision will be granted, and the Complaint of Stephen
C. Davidson dismissed.

Undisputed Material Facts2

Based on my review of the record generally, the Miami

Motion and attachments, and the Complainant’s response to the
Motion, I find the following material facts to be undisputed and
I view these facts in a light most favorable to the Complainant.

American hired Complainant on October 13, 1989, as a Flight

Engineer. After training was completed, he was promoted to
First Officer. He was discharged on December 17, 1999 for
failing to make the rank of Captain under American’s “up or out”
policy. Thereafter, Complainant filed a union grievance and an
Equal Employment Opportunity Commission (hereinafter EEOC)
complaint against American.

However, while Complainant’s union grievance was pending,

he was hired by Miami on September 25, 2000, as a First Officer
and later discharged on November 1, 2001. Following his
discharge, Complainant filed against Miami both an AIR 21
complaint with DOL as well as an EEOC complaint.3 In the AIR 21
complaint, Mr. Davidson alleged that he was terminated in
retaliation for having pointed out errors in Miami’s operational
manual. The Regional Administrator for DOL investigated the
complaint and found that Miami did not violate AIR 21 by
discharging Davidson. Complainant appealed the decision and
requested a hearing before an Administrative Law Judge. The
4
parties eventually agreed to settle the claim , which was
approved by an Administrative Law Judge on November 19, 2002.
2
The Respondent has not disputed that they are an “air carrier” falling
under the provisions of AIR 21. 49 U.S.C. § 42121(a); 29 C.F.R. § 1979.101.
3
Complainant alleged in his EEOC complaint that he was terminated
because of his race which is African American.
4
The Settlement Agreement provides that in consideration of $60,000,
Davidson agrees to release Miami from all claims, causes of action, and
claimed violations of the law. Whereby, Miami agrees: “To the extent that

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 During September 17-19, 2002, the Allied Pilots Association
System Board of Adjustment (hereinafter the Board) held a
hearing to determine if Complainant was prematurely terminated
by American. On July 7, 2003, the Board ordered American to
provide Complainant with initial training as First Officer and a
job in that position once he completed training. Complainant
completed his First Officer training in December of 2003 and is
currently flying as a First Officer for American today.

In the context of defending the civil action pending in

State Court against American, counsel for American issued two
subpoenas: one on December 6, 2002, and one on June 15, 2004, to
Miami’s Human Resource Manager, Frank Ryba, seeking documents
relating to Complainant’s employment with Miami. Complainant
failed to object to either of the subpoenas and Miami produced
the documents as requested.

On July 16, 2004, Complainant filed the current Complaint

against American and Miami under AIR 21 alleging that Miami
released documents to American in violation of the terms of
Miami and Complainant’s Settlement Agreement from the earlier
AIR 21 complaint filing. Complainant states that:

MAI has retaliation (sic) against me at least once

with the above mentioned Airline for filing Whistle
Blower charges against them!!!

This is clearly a violated (sic) our settlement

agreement on November 6, 2002. I request that action
be taken against Miami Air International as a result
of their negative actions against me. I request the
reopening of my whistle Blower case. I want American
Airline and their representatives barred from using
the fraudulent documents and derogatory information,
provided by Miami Air International, against me in any
way.

Upon investigating Davidson’s Complaint, the Regional

Administrator for DOL on October 13, 2004 determined that no
violation had occurred under AIR 21. On November 11, 2004,
Complainant appealed the findings and requested a formal
hearing.

Miami Air can expunge complainant’s records (personal) (training) it will do

so and hereby agrees to refrain from derogatory info to the extent permitted
by law.” (CX G).

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 In the November 11, 2004 request for hearing letter,
Complainant gave seven reasons why he was requesting a hearing.
Complainant first states that pursuant to the Settlement
Agreement, the Proficiency Check Form OPS-109 was supposed to be
removed. Complainant states that this form is forged and
according to the Miami Police Department and Mr. Gene
Kirkendall, it is a violation of federal law to have forged his
signature on this form. Second, Complainant discusses why the
civil suit against American is legitimate and why he refused to
settle the claim. Third, Complainant reiterates that Miami has
provided American with several documents that contain
conflicting information. Fourth, Complainant discusses why he
did not have an opportunity to challenge the subpoenas from
American to Miami. Fifth, Complainant states that records
presented American contain letters from co-workers after he was
terminated from American in 2001. He alleges that Miami had no
right to add these documents to his employment records. Sixth,
Complainant alleges that Miami settled his 2001 AIR 21 complaint
because Miami had falsified his signature on a permanent FAA
record. Finally, Complainant stated that he requested this
hearing because Miami has not processed his request to obtain a
copy of his personnel records.

Pursuant to Claimant’s request for a formal hearing, the

case was transferred to the OALJ. Thereafter, the complaint
against American was dismissed and Miami has filed this Motion
for Summary Decision.5

DISCUSSION AND APPLICABLE LAW

Standard for Summary Decision

The standard for granting summary decision in AIR 21 cases

is analogous to the rules governing summary judgment under the
Federal Rules of Civil Procedure. Mehen v. Delta Air Lines, DOL
ARB, No. 03-070, slip op. at 3 (Feb. 24, 2005); Fed. Rule of
Civ. P. 56(e). Applicable regulations provide that an
Administrative Law Judge may enter summary judgment for either
party where the pleadings, affidavits, material obtained by

5
On May 9, 2005, I received Miami’s Motion to Strike and Response to
Davidson’s Correspondence and Complaint to DOL/OSHA dated April 13, 2005.
The Motion indicates that Davidson has now filed another AIR complaint with
the U.S. Department of Labor (hereinafter DOL). A copy of that complaint was
attached to the Motion. Any subsequent filing by Davidson with DOL will be
treated by the Agency as a separate complaint filing. I have no jurisdiction
over that matter and it will not be considered in any way in this Order
relating to Miami’s Motion for Summary Judgment.

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discovery or otherwise, or matters officially noticed show that
there is no genuine issue as to any material fact and that a
party is entitled to summary decision. 29 C.F.R. § 18.40(d).
The opposing party may not rest upon the mere allegations or
denials of such pleading but must set forth specific facts
showing that there is a genuine issue of fact for the hearing.
29 C.F.R. § 18.40(c).

A material fact is one that might affect the outcome of the

suit, and a genuine dispute is one where a reasonable jury could
find for the nonmovant based on the evidence. Anderson v.
Liberty Lobby, Inc., U.S. 242, 247 (1986). A properly supported
summary decision motion should not be defeated based on the mere
existence of an alleged factual dispute; a “scintilla” of
evidence is not enough. Id. Summary decision is appropriate
when a party fails to sufficiently establish the existence of an
essential element of that party’s case. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). All evidence and factual
inferences are viewed in a light most favorable to the
nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). See also Williams v. Lockheed Martin
Corp., ARB NOS. 99-54 & 99-064, OALJ Nos. 1998-ERA-40, 42 (Sept.
29, 2000).

In its Motion for Summary Decision, Miami argues that there

is no genuine issue as to any material fact and that they are
entitled to a favorable decision as a matter of law.
Specifically, Miami argues that this court lacks jurisdiction
over these proceedings because Davidson’s claim is not protected
by AIR 21. Miami explains that Complainant did not state he was
discriminated against by Miami because he engaged in protected
activity pertaining to the violation of any federal law relating
to air carrier safety. In fact, Complainant only alleges that
this claim arises out of a purported breach of a Settlement
Agreement entered into in an earlier case. Miami states that
any action that is taken by either party to enforce the terms of
such Agreement can only address a breach of the Agreement, but
it is not a separate and distinguishable act of alleged
discrimination and/or retaliation. Miami also argues that if
this court determines that jurisdiction exists, Complainant is
not entitled to relief because the clear and unambiguous terms
of the Settlement Agreement required them to maintain and
eventually provide the Complainant’s employment records to
American.

Additionally, Miami argues that at the time this claim was

filed, Complainant was not an “employee” covered by the Act.

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Miami states that once the parties signed the Settlement
Agreement, Complainant was no longer considered an employee
under AIR 21. Miami concedes that Complainant was a covered
Miami employee for purposes of his 2001 complaint under AIR 21,

In response to Miami’s Motion, Complainant failed to

dispute the allegations made by Miami but instead argued that
documents provided by Miami to his prospective employer should
be accurate and consistent, especially when they refer to a
pilot’s qualifications and the reason for a person’s separation
from a company. Complainant then lists and discusses documents
that he believes to contain false or defamatory information.
Complainant alleges that Miami has circulated fraudulent
documents knowing that they were fraudulent. Specifically,
Complainant alleges a number of things including that the
October 19, 2001 OPS-109 form was completed outside of his
presence; that Miami’s November 1, 2001 Letter of Termination
contains false information; and that Miami added a third reason
for his termination on the November 30, 2001 Determination
Notice of Compensation Claim. Complainant also alleges that
Miami provided documents to American on or around April 30,
2004, which is prior to the June 2004 subpoena. Complainant
then provides an “Exhibit List,” which lists all of the
documents he plans to use during the upcoming hearing.

In a separate statement, Complainant comments about the

exhibits Miami submitted in support of its Motion for Summary
Decision. In response to “MX 1 and 2,” Complainant admits to
having a worker’s compensation lawsuit in progress and that he
declined to drop the claim when American offered a settlement.
In response to “MX 3 and 4,” he acknowledges that he does have a
civil suit pending against American. He also states that
counsel for American has provided counsel for Miami with
information from his personnel file. He believes this
information sharing is illegal. In response to “MX 5,”
Complainant mentions that he sent the letter to Administrative
Law Judge Michael P. Lesniak in an effort to get out of the
Settlement Agreement between him and Miami. Finally, in
response to “MX 6,” Complainant states that the information
Miami has provided to other employers has been beyond their
legal responsibilities. Complainant then offers suggestions on
how to expunge documents from his file.

Davidson was a Pro Se Complainant until March 22, 2005 when

Nicolas A. Manzini, Esq., entered his appearance in this case on
behalf of Davidson. Due to the Pro Se status, and by Orders
entered on February 23, 2005 and March 11, 2005, I provided

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Complainant and Mr. Manzini with notice of Miami’s Motion for
Summary Decision and advised him of his right to file a
responsive statement. He was also warned that failure to
respond could result in the entry of a summary judgment against
him.

Additionally, due to Mr. Manzini’s late appearance in this

case, in an Order dated March 23, 2005, I gave counsel until
April 6, 2005 to respond to Miami’s Motion.6 No formal response
from Mr. Manzini was ever submitted.

Miami argues in a later filing that Complainant’s first

response was not adequate because the document failed to include
any Affidavits, legal or factual arguments, or address any
issues discussed in the Motion. Miami contends that due to
Complainant’s repeated failure to file a responsive document to
the Motion for Summary Decision, that Davidson’s Complaint
should be dismissed with prejudice and reasonable costs and
attorney fees should be awarded.

Scope of Coverage and Burdens of Proof Under AIR 21

In general, AIR 21 provides that no airline employee may be

discharged or otherwise discriminated against by an air carrier
if he or she has done one of the following:

(1) provided, caused to be provided, or is about to

provide (with any knowledge of the employer) or cause
to be provided to the employer or Federal Government
information relating to any violation or alleged
violation of any order, regulation, or standard of the
Federal Aviation Administration or any other provision
of Federal law relating to air carrier safety . . .;

(2) has filed, caused to be filed, or is about to file

(with any knowledge of the employer) or cause to be
filed a proceeding relating to any violation or
alleged violation of any order, regulation, or
standard of the Federal Aviation Administration or any

6
On April 5, 2005, Mr. Manzini contacted this office and spoke to my law
clerk. He asked if it was necessary for him to respond to Miami’s Motion
since Complainant had previously submitted a response. Mr. Manzini was
instructed that a response was necessary due to Complainant’s Pro Se status
at the time his initial response was filed. My law clerk also telephoned Mr.
Manzini’s office on April 6, 2005 to remind him that a response was due on
that date.

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 other provision of Federal law relating to air carrier
safety;

(3) testified or is about to testify in such a

proceeding; or

(4) assisted or participated or is about to assist or

participate in such a proceeding.

Peck v, Safe Air International, Inc., ARB No. 02-028, AlJ No.
2001-AIR-3, slip op. at 5 (ARB Jan. 30, 2004); 49 U.S.C. § 42121
(a).

A complaint alleging a violation under AIR 21 must be

dismissed “unless the complainant has made a prima facie showing
that protected behavior or conduct was a contributing factor in
the unfavorable personnel action alleged in the complaint.” 29
C.F.R. § 1979.104(b). To show a prima facie violation of the
statute by the Respondent, the following must be established:

(i) The employee engaged in a protected activity or

conduct;
(ii) The named person knew or suspected, actually or
constructively, that the employee engaged in
the protected activity;
(iii) The employee suffered an unfavorable personnel
action; and
(iv) The circumstances were sufficient to raise the
inference that the protected activity was a
contributing factor in the unfavorable action.

29 C.F.R. § 1979.104(b)(1)(i-iv).

Temporal proximity between protected activity and adverse

personnel action normally will satisfy the burden of making a
prima facie showing of knowledge and causation. Peck, ARB No.
02-028, slip op. at 6 (citing 29 C.F.R. § 1979.104(b)(2)).
However, even if the Complainant establishes a violation of the
Act, relief may not be granted “if the respondent demonstrates
by clear and convincing evidence that it would have taken the
same adverse action in any event.” Peck, ARB No. 02-028, slip
op. at 6 (citing 49 U.S.C.A. § 42121(b)(2)(B)(iv); 29 C.F.R. §
1979.109(a)).

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Issue of Employee Standing

Complainant alleges that Miami released personnel documents

to American in violation of the terms of the Miami and
Complainant Settlement Agreement in an earlier AIR case filing.
Davidson argues that the releases took place in retaliation for
his 2001 AIR complaint filed against Miami. Miami argues that I
lack jurisdiction to hear this claim because Complainant was not
an employee as defined under AIR 21 at the time of the personnel
documents release or at the time he filed this claim. Section
1979.101 defines employee as an individual presently or formerly
working for an air carrier or contractor or subcontractor of an
air carrier. Peck, ARB No. 02-028, slip op. at 9 (quoting 29
C.F.R. § 1979.101).

Miami does not dispute that Complainant was an “employee”

defined under AIR 21 in the 2001 Complaint, nor does Miami
dispute that they are an “air carrier” as defined under Section
1979.102. Miami argues that based upon the terms of the
Settlement Agreement in the earlier case that Complainant’s
employment with Miami was terminated and thus he was not
protected under the Act against any Miami disclosures subsequent
to the agreement date.

The facts establish that at the time Miami responded to the

subpoena and produced to American the contested documents, there
was no employment relationship between Complainant and Miami.
The subpoena responses occurred in December 2002 and June 2004.
The record establishes that Miami hired Complainant on September
25, 2000, as a First Officer and discharged him on November 1,
2001. He was never rehired by Miami. Therefore, in 2002 and
2004, Complainant was a former employee of Miami as defined
under Section 1979.101 for purposes of the 2004 AIR 21
Complaint. See Friday v. Northwest Airlines, Inc., 2004-AIR-16
and 17 (ALJ June 16, 2004).7

Under AIR 21, coverage can extend to former employees

depending on the surrounding factual circumstances of the
alleged violation. See Peck, ARB No. 02-028, slip op. at 6.
However, the impact of the Complainant’s status as a former
employee is limited under AIR 21. Friday, 2004-AIR-16 and 17,
slip op. at 8. “The general rule, applied in other
whistleblower and retaliation contexts, is that complainants who
7
In Friday, the Administrative Law Judge determined that the Complainant
was a former employee defined under the Act, although he had voluntarily
terminated his employment.

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are former employees are subject to unfavorable personnel
actions when the alleged retaliatory act is related to or arises
out of the employment relationship in some way.” Id., (citing
Charlton v. Paramus Board of Education, 25 F.3d 194, 198-200 (3rd
Cir. 1994); Rutherford v. American Bank of Commerce, 565 F.2d
1162 (10th Cir. 1977); Delcore v. Northeast Utilities, 90-ERA-37
(Sec’y Mar. 24, 1995)).

As a former employee who terminated his relationship with

the Respondent by signing a Settlement Agreement, “only those
actions by the Respondent which affect the benefits the
Complainant is entitled to as a former employee, his possible
re-employment, or his ability to seek other employment (such as
blacklisting claim), are covered as a personnel action under AIR
21.” Friday, 2004-AIR-16 and 17, slip op at 8. Since
Complainant has not specifically alleged any of these actions by
Miami in this claim, I find that Stephen C. Davidson was not a
covered employee of Miami at the time of the document
disclosures and thus his claim is not covered under the Act.
Therefore, Miami’s Motion for Summary Decision must be granted
for this reason alone.

Protected Activity

Miami is also entitled to Summary Decision based upon

Complainant’s failure to show that he engaged in any protected
activity. Complainant alleges that in retaliation for filing
his 2001 complaint under AIR 21, Miami breached their Settlement
Agreement by complying with subpoenas issued by American. Miami
argues that this court lacks jurisdiction because even assuming
the Settlement Agreement was breached, the Complainant’s
allegation relating to the document disclosure does not involve
protected activity. Based upon the undisputed facts in the
record, I conclude that Miami’s argument has merit.

In order to prevail under AIR 21, Davidson must establish

that he engaged in protected activity. See Mehen, DOL ARB, No.
03-070, slip op. at 4; § 1979.104(b)(1). Protected activity
under AIR 21 has three elements. First, the complaint must
either: a) involve a purported violation of an FAA regulation,
standard or order relating to air carrier safety, or any other
provision of Federal law relating to air carrier safety; or, b)
at least “touch on” air carrier safety. Second, the
complainant’s belief about the purported violation must be
objectively reasonable. Third, the complaint must be made
either to the complainant’s employer or the Federal Government.
Svendsen v. Air Methods, Inc., ARB No. 03-074, ALJ No. 2002-AIR-

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16, slip op. at 48 (ARB Aug. 26, 2004); Weil v. Plant Airways,
Inc., 2003-AIR-18 (ALJ Mar. 16, 2004).

Davidson’s Complaint alleges retaliation based upon an

alleged breach of a Settlement Agreement executed by Complainant
and Miami and which administratively closed an earlier
whistleblower complaint filed by Complainant in 2001. The
breach of a Settlement Agreement does not fall within the plain
language of Section 42121 involving the providing of information
or the filing of a proceeding relating to a violation of Federal
air carrier safety laws. Mehen, DOL ARB, No. 03-070, slip op.
at 5. Thus, even assuming a breach had occurred, it would not
constitute protected activity under these circumstances.

Davidson also alleges that Miami has retaliated against him

“at least once” by providing fraudulent documents to American
for filing his earlier whistleblower complaint against Miami.
Additionally, Complainant alleges that Davidson has also
provided fraudulent documents to other prospective employers.
The Board has stated that while a complaint “may be oral or in
writing, protected complaints must be specific in relation to a
given practice, condition, directive, or event.” Peck, ARB No.
02-028, slip op. at 9. See Fader v. Transportation Security
Administration, 2004-AIR-27 (ALJ June 17, 2004). Although
Davidson’s Complaint might infer that Miami has affected his
ability to seek other employment, Complainant failed to show
specific facts demonstrating that Complainant’s employment was
affected at American or with any other air carrier because of
Miami’s alleged disclosure of fraudulent documents. Complainant
has not alleged specific facts to support his allegation.

The Complainant’s representations concerning whether Miami

is required to expunge certain documents pursuant to the parties
Settlement Agreement is not an issue over which I have
jurisdiction. According to the judicial enforcement provisions
of AIR 21, if a Complainant is seeking enforcement of the terms
of a Settlement Agreement, then he is required to file a civil
action in the United States District Court in the jurisdiction
where the violation occurred. 29 C.F.R. § 1979.113. Thus by
law, I do not have jurisdiction to enforce the terms of the
Settlement Agreement.

For the reasons stated above, I find that Complainant does

not qualify as an employee covered under AIR 21 for purposes of
his Complaint against Miami. Additionally, even assuming
Complainant was a covered employee, he has not alleged
sufficient facts to show that he engaged in protected activity

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under the Act. Also assuming his Complaint seeks enforcement of
any provision of the Agreement, I do not have jurisdiction over
that matter.

Davidson’s burden on summary decision with respect to Miami

was to create a triable issue of fact concerning his employee
status with Miami and his engaging in protected activity. See
Allison v. Delta, ARB No. 03-150, ALJ No. 2003-AIR-00014, slip.
op. at 5 (ARB Sept. 30, 2004). He has failed to do so. Since
essential elements of his claim have not been shown by Davidson,
summary decision is appropriate and Miami’s Motion for Summary
Decision must be granted.

Based on this record, Complainant has failed to demonstrate

that he engaged in any protected activity or that he suffered an
unfavorable personnel action by the Respondent. Since
Complainant cannot establish a prima facie case of
discrimination under AIR 21, Davidson’s Complaint must be
dismissed pursuant to § 1979.104(b). Therefore, I find that
there exists no genuine issue of any material fact and that
Miami is entitled to judgment as a matter of law.

ATTORNEY FEES

Miami also asks that it be awarded reasonable costs and

attorney fees, and all other relief permitted by law that is
deemed to be just and proper. Miami argues that they are
entitled to attorneys’ fees because Davidson did not allege a
violation under AIR 21 in his Complaint or file a responsive
document to their Motion. Miami does not allege that
Complainant acted in bad-faith when he filed his Complaint.

Under the Act, reasonable attorney’s fees may be awarded,

not exceeding $1000, to a prevailing employer if the complaint
is determined to be frivolous or brought in bad-faith. Peck,
ARB No. 02-028, slip op. at 15 (quoting 49 U.S.C.A. §
42121(b)(3)(C)). See Allison, ARB No. 03-150, slip. op. at 6;
29 C.F.R. §§ 1979.109(b) and 1979.110(e). In Berry v. Brady,
th
192 F.3d 504, 507 (5 Cir. 1999) it is said that:

A complaint is frivolous “if it lacks an arguable

basis in law of fact.” Talib v. Gilley, 138 F.3d 211,
213 (5th Cir. 1998). “A complaint lacks an arguable
basis in law if it is based on an indisputably
meritless legal theory, such as if the complaint
alleges the violation of a legal interest which

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 clearly does not exist.” Harper v. Showers, 174 F.3d
716, 718 (5th Cir. 1999). “A Complaint lacks an
arguable basis in fact if, after providing the
plaintiff the opportunity to present additional facts
when necessary, the facts alleged are clearly
baseless.” Talib, F.3d at 213.

I find insufficient evidence to show that Davidson’s

Complaint was frivolous or brought in bad faith. Davidson
vociferously argues that Miami’s alleged breach of their
Settlement Agreement was a violation of AIR 21. Complainant
believes that based on the Agreement that Miami was required to
eliminate certain derogatory documents in his personnel file.
He also holds a firm belief that Miami retaliated against him
when they allegedly sent derogatory documents to American.
Since I must conclude that Complainant held a firm and sincere
belief that he was a victim of retaliation, I find that his
Complaint was not based upon a meritless legal theory nor was it
based upon baseless facts.

I also find Davidson’s belief that he was an employee

covered under the Act to be reasonable. The record shows that
Complainant worked for Miami as a pilot during 2000 and 2001.
Miami does not contest that Davidson was an employee covered by
the Act when he filed his first AIR 21 complaint. Therefore, as
an employee covered under the Act for the first AIR 21
complaint, it is understandable that Complainant would think
that he was also a “former employee” as defined under the Act
and, therefore, a covered employee for purposes of the second
filing.

Since Miami has not demonstrated that Complainant filed a

frivolous Complaint or that it was brought in bad-faith, Miami’s
request for attorneys’ fees and costs is DENIED.

ORDER

It is ORDERED that the Motion for Summary Decision filed by

the Respondent, Miami Air International, Inc., is hereby GRANTED
and Stephen C. Davidson’s complaint filed against Miami is

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hereby dismissed. In view of this disposition, Respondent’s
other pending motions outlined in my Order dated March 23, 2005,
and filed subsequent to that date, are rendered moot.

A
Rudolf L. Jansen
Administrative Law Judge

NOTICE OF APPEAL RIGHTS: This decision shall become the final

order of the Secretary of Labor pursuant to 29 C.F.R. §
1979.110, unless a petition for review is timely filed with the
Administrative Review Board ("Board"), US Department of Labor,
Room S-4309, 200 Constitution Avenue, NW, Washington DC 20210,
and within 30 days of the filing of the petition, the ARB issues
an order notifying the parties that the case has been accepted
for review. The petition for review must specifically identify
the findings, conclusions or orders to which exception is taken.
Any exception not specifically urged ordinarily shall be deemed
to have been waived by the parties. To be effective, a petition
must be filed within ten business days of the date of the
decision of the administrative law judge. The date of the
postmark, facsimile transmittal, or e-mail communication will be
considered to be the date of filing; if the petition is filed in
person, by hand-delivery or other means, the petition is
considered filed upon receipt. The petition must be served on
all parties and on the Chief Administrative Law Judge at the
time it is filed with the Board. Copies of the petition for
review and all briefs must be served on the Assistant Secretary,
Occupational Safety and Health Administration, and on the
Associate Solicitor, Division of Fair Labor Standards, U.S.
Department of Labor, Washington, DC 20210. See 29 C.F.R. §§
1979.109(c) and 1979.110(a) and (b).

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